154 Ky. 348 | Ky. Ct. App. | 1913
Opinion op the Court by
Reversing.
This is the second appeal of this ease. The former opinion will be found in 146 Ky., 260. In that opinion a detailed account of the facts upon which plaintiff based his cause of action and the defendant its defense is given, and it is unnecessary to restate them here.
The case was reversed upon two grounds-: First, error in the admission of evidence; and second, because the verdict was flagrantly against the evidence. Upon the return of the case, a second trial was had, with the result that plaintiff recovered a verdict for a sum slightly less than that recovered on the first trial. The defendant appeals and assigns as grounds for reversal the following: 'First, error of the court in failing to give a peremptory instruction; second, error in refusing to set aside the verdict, because flagrantly against the evidence; third, misconduct of counsel for plaintiff in the argument of the case, to which objection was made and exceptions saved at the time; and fourth, because the verdict is excessive.
The evidence for appellee upon the last trial was, in no material respect, different from that offered upon the first trial. Indeed, it was the same. The evidence for the
There is no merit in the contention that a peremptory instruction should have been given. Upon the former appeal, it was held that, while the verdict was flagrantly against the evidence, there was sufficient evidence to take the case to the jury. That ruling is the law of the case so long as the evidence is the same; and it is conceded that this condition existed.
As the case must be retried, we find no necessity for passing upon the point that the verdict is excessive.
The argument of counsel objected to is the following statement: ‘ ‘ G-entlemen of the jury, I will tell you how that freight train was pulled out ,of that tunnel. It was split in two and pulled out in two sections; the engine pulled the first half out and then came back and pulled the other half out; that is the only way .that they could have done it. ” We fail to find any evidence in the record upon which such statement could be based, and counsel for appellee practically concede this and that it was merely a theory of his own. This line of argument was improper and prejudicial, and the court should have done more than merely state to the jury that they were to try the case according to the testimony. He should have expressly stated that it was not a proper line of argument
Judgment reversed and cause remanded for further proceedings not inconsistent herewith.